We use cookies to provide you with the best experience on our website - find out how we use cookies.
By continuing to browse our website, you are agreeing to our use of cookies.
CLOSE THIS MESSAGE

A guide to Northern Ireland’s Human Trafficking and Exploitation Act 2015 - Chapter 2

 [Back to contents page]

 

2. The Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015

In this chapter:

Introduction

2.1  Slavery, servitude and forced or compulsory labour (Section 1)

2.2  Human Trafficking (Section 2)

2.3  The meaning of Exploitation under the Act (Sections 3 and 4)

2.4  Sentencing for Slavery or Human Trafficking Offences (Sections 5-7)

2.5  Ancillary Orders (Sections 8-11 and Schedules 1-3)

2.6  Slavery and Trafficking Reparation Orders (Section 10 and Schedule 3)

2.7  Slavery and Trafficking Prevention Orders (Section 11 and Schedule 3)

2.8  Duties of Public Authorities in relation to prevention and enforcement of Slavery and Human Trafficking offences (Sections 12-14)

 

Introduction - Part 1 of the Act

Part 1 of the Act repeals and consolidates the existing criminal provisions (outlined above) in the area of slavery and human trafficking into one source. The result is two distinct principle offences for slavery, human trafficking and forced labour:

  1. Slavery, servitude and forced or compulsory labour (Section 1)
  2. Human trafficking (Section 2)

2.1 Slavery, servitude and forced or compulsory labour (Section 1)[1]

Section 1 of the Act specifies the following activity as the offence of slavery, servitude and force and compulsory labour:

  1. The holding of a person in slavery or servitude where the perpetrator knows or ought to know that the person was being held in slavery or servitude
  2. Requiring a person to perform compulsory or forced labour where the perpetrator knows or ought to know that a person is being required to perform forced labour

The Act does not specifically define slavery, servitude and forced or compulsory labour, but does place a statutory duty on the courts to interpret those terms in accordance with Article 4 of the European Convention on Human Rights (Prohibition of Slavery and Forced Labour).

The historical interpretation of the terms slavery, servitude and forced or compulsory labour in the area of Public International Law, along with the case law of the European Court of Human Rights, in relation to the interpretation of Article 4 of the European Convention on Human Rights, has produced the following definitions of the various terms[2]:

i)  Slavery – the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised[3]

ii)  Servitude – an obligation to provide one’s services that is imposed by the use of coercion[4]  (servitude differs from forced labour in that it includes the obligation on the part of the victim to live on another’s property along with the impossibility of changing their condition[5])

iii) Forced or compulsory labour – all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.[6]

The provisions relating to these offences make it clear that in assessing whether a person is being held in conditions amounting to slavery, servitude and force or compulsory labour, regard may be had to all the victim’s circumstances which may make them more vulnerable than other persons and in particular, that the victim is a child or vulnerable adult or that the accused is a member of the victim’s family.

Consent of the victim to any act that forms part of slavery, servitude and forced or compulsory labour is irrelevant to the guilt or innocence of a party accused of an offence under Section 1 of the Act.

 

 

2.2 Human Trafficking (Section 2)[7]

Section 2 of the Act defines human trafficking as arranging or facilitating the travel of another person with a view to that person being exploited.[8]

The Act specifies that arranging or facilitating travel may mean the following activity in relation to another person:

  • Recruitment
  • Transportation
  • Transfer
  • Harbouring
  • Receipt
  • Exchanging Control

Travel is arranged with a view to another person being exploited only if the perpetrator intends to exploit that person during or after travel or the perpetrator knows or ought to know that another person is likely to exploit that person.  It is irrelevant where in the world exploitation is intended or likely to take place.

Travel for the purposes of human trafficking under the Act means arriving into, entering or departing from any country. Travel also includes movement within any country.

As with the offence of slavery, servitude or forced labour under Section 1 of the Act, consent of the victim to any act constituting human trafficking is irrelevant to the guilt or innocence of a person accused of human trafficking under Section 2 of the Act.

For those accused of committing human trafficking under the Act who are:

  • UK nationals; or
  • habitually resident in Northern Ireland; or
  • a body incorporated under the law of part of the UK;

It is irrelevant where arrangement or facilitation of travel takes place, as is the location of the travel itself.

For accused persons not falling into one of the three categories above, the offence is committed where any part of arrangement, facilitation or the travel itself takes place in the UK.

 

 

2.3  The meaning of Exploitation under the Act (Sections 3 and 4)

The offence of human trafficking under Section 2 of the Act requires intent on the part of the accused that the travel being arranged or facilitated is carried out with a view to exploitation of the victim.

Exploitation is given the following statutory meaning by Section 3 of the Act:

  • Slavery
  • Servitude
  • Forced labour
  • Sexual exploitation (meaning any offence under Sexual Offences (NI) Order 2008 or child pornography)
  • Removal of organs (meaning any offence under sections 32 or 33 of the Human Tissue Act 2004)
  • Securing the services of a person by force or deception - under section 3 of the Act. This is taken to mean inducing the victim, by reason of their being subjected to force, threats, abduction, coercion, fraud or deception to provide services of any kind or to provide a benefit of any kind to another person. This includes the proceeds of forced begging or criminal activities.
  • Securing the services of a child or vulnerable person[9]. Exploitation also occurs under Section 3 of the Act, where a person uses, or attempts to use another person to secure their services, having chosen that person on the grounds that they are a child, vulnerable adult or member of the perpetrator’s family, or that the perpetrator is in a position of trust over the victim. In such circumstances, the activity is regarded as exploitation regardless of the victim’s consent, if, a person who was not within one of the four categories would be likely to refuse to carry out the service

Section 4 of the Act also provides that a person who commits any criminal offence with intent to commit an offence of slavery, servitude, forced labour or human trafficking under section 1 or 2 of the Act, is guilty of a new offence.

 

 

2.4 Sentencing for Slavery or Human Trafficking Offences (Sections 5-7)

The maximum sentences for each offence outlined above can be found in the table below:

Offence
Maximum Sentence
Comment

Section 1: Slavery, servitude or forced labour

Life imprisonment

Indictable only offence

Section 2: Human trafficking

Life imprisonment

Indictable only offence

Section 3: Committing an offence with intent to commit an offence under Section 1 or 2

Life imprisonment

When initial offence is kidnapping or false imprisonment (indictable only)

10 years

When tried on indictment and initial offence is other than those specified above

6 months and/or £5,000 fine

When tried summarily


As with the pre-existing offences the Act consolidates, slavery and human trafficking offences committed under Sections 1 and 2 of the Act are both serious and specified violent offences for the purposes of Schedules 1 and 2 of The Criminal Justice (NI) Order 2008. 

A human trafficking offence under Section 2 of the Act, committed with a view to sexual exploitation under section 3(3) of the Act is also a specified sexual offence for the purposes of sentencing dangerous offenders under the Criminal Justice (NI) Order 2008.

Section 6 of the Act places a statutory duty on sentencing authorities to treat a number of circumstances as aggravating slavery or human trafficking offences under Sections 1 and 2 of the Act. The circumstances that must be treated as aggravating factors in relation to those offences are:

  • The perpetrator is a public official[10] and the offence was committed in relation to carrying out his/her duties[11]
  • The perpetrator is a family member of the victim
  • The perpetrator was in a position of trust
  • The victim was a child[12]
  • The victim was a vulnerable adult
  • The perpetrator made threats against the victim’s family
  • The perpetrator endangered the life of the victim (either deliberately or by gross negligence)[13]
  • The perpetrator caused serious harm to the victim[14]
  • The perpetrator has previous convictions for offences of the same type (whether committed in NI or anywhere else)[15]  

Section 7 of the Act also introduces a minimum sentence for those convicted of a slavery or human trafficking offence under section 1 or 2 of the Act.

This only applies to those perpetrators who were adults at the time the offence was committed.

The minimum sentence a Crown Court is obliged to impose under the Act is two years imprisonment and this must be imposed unless the Court is satisfied that there are exceptional circumstances that apply in relation to either:

  1. The offence
  2. The offender

If a court does find that exceptional circumstances exist that justify imposing a lesser sentence than the minimum two years imprisonment, it is obliged to state in open court that this is the case and the reasons for that finding.

 

 

2.5 Ancillary Orders (Sections 8-11 and Schedules 1-3)

The Act empowers courts dealing with offenders convicted of slavery or human trafficking offences to make a number of Ancillary Orders by virtue of Sections 8-11, along with Schedules 1-3 of the Act.

These are:

  1. The Confiscation of assets under the Proceeds of Crime Act 2002 (Section 8 of the Act)
  2. Detention and forfeiture of vehicles, ships and aircraft used or intended to be use in connection with Slavery or human trafficking offences
  3. Slavery and Trafficking Reparation Orders
  4. Slavery and Trafficking Prevention Orders

Those convicted of human trafficking offences under the Act can also be made subject to Serious Crime Prevention Orders[16], as well as Sexual Offences Prevention Orders[17].

 

 

2.6 Slavery and Trafficking Reparation Orders [18][19] (Section 10 and Schedule 3)

Section 10 of the Act, along with Schedule 3, empowers a court to make a Slavery and Trafficking Reparation Order (STRO) against a person convicted of a slavery or human trafficking offence, where a confiscation order is also made against the offender in respect of those offences.

An STRO requires an offender to pay compensation to the victim of their offences for any harm that has resulted from those offences.

The court determines whether to make an order with reference to:

  1. The offender’s means
  2. Whether the court is minded to impose a fine (compensation to the victim takes priority)

The court determines the amount payable with reference to:

  1. The evidence and representations on behalf of the offender and prosecutor
  2. The amount payable under any confiscation order (the amount of the STRO cannot exceed this)
  3. The offender’s means
 

 

2.7 Slavery and Trafficking Prevention Orders (Section 11 and Schedule 3)

Section 11, along with Schedule 3 of the Act empowers a court to make a Slavery and Trafficking Prevention Order (STPO) on conviction, finding of not guilty by reason of insanity, or unfitness to plead, in respect of a defendant accused of a slavery or human trafficking offence.

An STPO can only be made where the court is satisfied that:

i) There is a risk that the Defendant may commit a slavery or human trafficking offence

ii) It is necessary for protecting persons generally or particular persons from physical or psychological harm likely to occur if the defendant committed a slavery or human trafficking offence

The offences to which this applies include offences under sections 1, 2 and 4 of the Act, as well as the relevant offences in existence before the passage of the Act.

An STPO can be made by both Magistrates’ and Crown Courts.

The effect of an STPO is that the defendant, in respect of whom it is made, is prohibited from or required to do anything described in the Order. Such terms are subject to a necessity test and have effect for a fixed period of at least 5 years, or until further order.

Any prohibition on foreign travel must be for a fixed period of less than 5 years.

Breach of an STPO is a criminal offence, punishable by:

i) 6 months imprisonment and/or £5000 fine when tried summarily

ii)  5 years imprisonment if tried on indictment

 

2.8 Duties of Public Authorities in relation to Prevention and Enforcement of Slavery and Human Trafficking offences (Sections 12-14)

Section 12 of the Act places a statutory duty on the Department of Justice to publish a strategy at least once a year in relation to slavery and human Trafficking offences under sections 1 and 2 of the Act.

The purpose of the publication is to raise awareness of the relevant offences in Northern Ireland and to contribute to a reduction in the number of those offences. The strategy is obliged to set out arrangements for co-operation between relevant organisations dealing with offences and victims, as well as the training and equipment of law enforcement agencies dealing with the offences and victims. The strategy is also obliged to include provisions aimed at raising awareness of victims’ rights and entitlements[20].

Public authorities are also obliged by section 13 of the Act to notify the National Crime Agency if they have reason to believe that a person may be a victim of slavery or human trafficking. The Department of Justice is also obliged under Section 13 to issue guidance to public authorities on identifying potential victims of those offences.

In accordance with Article 27 of the Council of Europe’s Convention on Action against Trafficking in Human Beings, section 14 of the Act makes explicit provision that investigation or prosecution of slavery or human trafficking offences under the Act are not dependent on reporting an offence or accusing a person of committing an offence. Section 14 also provides that proceedings in respect of slavery or human trafficking offences may be commenced or continued even if the victim has withdrawn any statement made in relation to an offence.

[Back to top of page]

 

[1] See Section 1 of the Modern Slavery Act 2015 for equivalent provisions in force in England and Wales

[2] Siliadin -v- France (2006) 43 EHRR 16

[3] The Slavery Convention 1927, Article 1

[4] Siliadin -v- France (2005) 20 BHRC 654 at para 124, discussed in R -v- K [2011] 1 All ER 1090 at para 43

[5] Van Droogenbroeck v Belgium (1982) 4 EHRR

[6] International Labour Organisation’s Forced Labour Convention 1930, Article 2

[Back to 2.1 Slavery, servitude and forced or compulsory labour (Section 1)]

 

[7] See Section 2 of the Modern Slavery Act for equivalent provisions in England and Wales

[8] The Act adopts the definition of human trafficking set out in Article 4 of the Council of Europe Convention on Action Against Trafficking in Human Beings and Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children 2000 (The Palermo Protocol)

[Back to 2.2 Human Trafficking (Section 2)]

 

[9] See Article 19 of the Convention on Action against Trafficking in Human Beings for the State’s obligation to criminalise the use of a victim’s services

[Back to 2.3  The meaning of Exploitation under the Act (Sections 3 and 4)]

 

[10] Meaning civil servant, public servant, public office holder or police officer

[11] See Article 24 of the Convention on Action against Trafficking in Human Beings

[12] Ibid

[13] Ibid

[14] “serious harm” in this context has the same meaning as in Article 3 of the Criminal Justice (NI) Order 2008

[15] See Article 25 of the Convention on Action against Trafficking in Human Beings

[Back to 2.4 Sentencing for Slavery or Human Trafficking Offences (Sections 5-7)]

 

[16] By virtue of Schedule 1, Part 2 of the Serious Crime Act 2007 and section 26 and Schedule 4 of the Act

[17] By virtue of Schedule 5, Sexual Offences Act 2003 and section 26 and Schedule 4 of the Act

[Back to 2.5 Ancillary Orders (Sections 8-11 and Schedules 1-3)]

 

[18] See Article 15 of the Convention on Action against Trafficking in Human Beings for the State’s obligation to provide victims with the right to compensation from perpetrators

[19] See Section 8 of the Modern Slavery Act for equivalent powers to make STRO in England and Wales

[Back to 2.6 Slavery and Trafficking Reparation Orders (Section 10 and Schedule 3)]

 

[20] The Department of Justice published its first Human Trafficking and Exploitation Strategy on 15 September 2015:

https://www.justice-ni.gov.uk/publications/northern-ireland-human-trafficking-and-exploitation-strategy-2015-2016

[Back to 2.8 Duties of Public Authorities in relation to Prevention and Enforcement of Slavery and Human Trafficking offences (Sections 12-14)]

 

© Law Centre (NI) 2017

Disclaimer - Although every effort is made to ensure the information in Law Centre publications is accurate, we cannot be held liable for any inaccuracies and their consequences. The information should not be treated as a complete and authoritative statement of the law.

Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to Northern Ireland law.

When reading Law Centre documents, please pay attention to their date of publication as legislation may have changed since they were published.

[Back to top of page]

[Back to contents page]

Share

e-newsletter

Follow us on twitter

YouTubeLogo

Flickr logo

Follow us on Linkedin

 

Become a member

Work with us

WRAP login

Donate to Law Centre (NI)

 

Law Centres Network logo